Karnataka High Court
Muruga vs The State Of Karnataka on 21 October, 2020
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.50876/2019 (S-REG)
C/W
WRIT PETITION NOs.8573/2020, 31602/2019(S-REG)
IN W.P. NO.50876/2019
BETWEEN
1. MURUGA
S/O SUBRAMAYA
AGED ABOUT 50 YEARS
R/AT NO 28,
RAJEEVA GANDI COLONY
MANANDAVA
OPPOSITE SILK FACTORY
ASHOKAPURAM
MYSORE DISTRICT - 570008
2. YANGAIAH
S/O LATE SIDDAIAH
AGED ABOUT 50 YEARS
R/AT NO 27,
NACHANAHALLI PALYA
J P NAGAR, ARASIKERE MYSORE ROAD,
MYSORE DISTIRCT - 570008
3. AMJAD PASHA
S/O ABDUL KHADAR
AGED ABOUT 56 YEASR
R/AT NO 262 , 2ND CROSS,
SHANTHI NAGAR
MYSORE - 570019
4. GURUNATHA
S/O LATE KRISHNA
AGED ABOUT 52 YEARS
R/AT NO 46, E BLOCK
2
13TH CROSS, ASHOKAPURAM
MYSURU - 570008
5. MAHADEVU
S/O LATE JAVARAIAH
AGED ABOUT 51 YEARS
R/AT B 2689, 2ND CROSS,
MEDARAKERI K R MOHALLA
LAKSHMIPURA
MYSURU - 570004
...PETITIONERS
(BY SRI SHARATH S GOWDA, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
B R AMBEDKAR VEEDHI
BANGALORE - 560001
2. THE STATE OF KARNATAKA
REP BY THE PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
B R AMBEDKAR VEEDHI
BENGALURU - 560001
3. DIRECTORATE OF MUNICIPAL ADMINISTRATION
REP BY ITS SECRETARY
DR B R AMBEDKAR ROAD,
9TH AND 10TH FLOOR,
VISHVESHWARAIAH TOWER
BENGALURU - 560001
4. MYSURU CITY CORPORATION
NEW SAYYAJI RAO ROAD
MYSURU - 570024
REP BY ITS COMMISSIONER
5. THE DEPUTY COMMISSIONER
MYSURU
KRISHNARAJA BOULVARD ROAD,
MYSURU DISTRICT
MYSURU - 570001
...RESPONDENTS
(BY SMT VANI H , AGA FOR R1 TO R3 & R5
SMT GEETHADEVI M P, ADVOCATE FOR R4 )
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENT AUTHORITIES TO CONSIDER THE CASE
OF THE PETITIONERS FOR REGULARIZATION OF THEIR
SERVICE AS PER THE DIRECTIONS GIVEN BY THE FIVE
JUDGE CONSTITUTIONAL BENCH OF THE HON'BLE
SUPREME COURT IN THE CASE OF STATE OF KARNATAKA
AND ORS V/S UMADEVI(3) AND ORS AND ETC.
IN W.P. NO.8573/2020
BETWEEN
MAHADEVA SWAMY
S/O LATE THIMMEGOWDA
AGED ABOUT 50 YEARS,
R/O 85, MANANTHAVADI ROAD,
NEAR SIDDAPPAJI TEMPLE,
SRIRAMPURA, MYSORE 570008.,
WORKING AS MAALI (GARDENER)
AT MYSORE MUNICIPAL CORPORATION.
...PETITIONER
(BY SRI SHARATH S GOWDA, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
B.R.AMBEDKAR VEEDHI,
BANGALORE-560001
2. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA, B.R AMBEDKAR VEEDHI,
BENGALURU-560001
3. DIRECTORATE OF MUNICIPAL ADMINISTRATION
REP. BY ITS SECRETARY,
DR. B.R. AMBEDKAR ROAD,
9TH AND 10TH FLOOR,
VISHVESHWARAIAH TOWER,
BENGALURU-560 001
4. MYSURU CITY CORPORATION,
NEW SAYYAJI RAO ROAD,
4
MYSURU-570024.
REP BY ITS COMMISSIONER.
5. THE DEPUTY COMMISSIONER,
MYSURU,
KRISHNARAJA BOULVARD ROAD,
MYSURU DISTRICT, MYSURU-570001.
...RESPONDENTS
(BY SMT VANI H, AGA FOR R1 TO R3 AND R5
SMT GEETHADEVI M P, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENT AUTHORITIES TO CONSIDER THE CASE
OF THE PETITIONER FOR REGULARIZATION OF SERVICE AS
PER THE DIRECTIONS GIVEN BY THE FIVE JUDGE
CONSTITUTIONAL BENCH OF THE HON'BLE SUPREME
COURT IN THE CASE OF STATE OF KARNATAKA AND ORS
V/S UMADEVI(3) AND ORS AND ETC.
IN W.P. NO.31602/2019
BETWEEN
1. MAHADEVA R
S/O RANGAIAH
AGED ABOUT 50 YEARS
R/A NO.45
D DEVARAJ ARAS COLONY
VISHWESHWARANAGARA, 2ND STAGE
MYSORE-570008
2. MAHADEVA
S/O CHIKKERA
AGED ABOUT 55 YEARS
R/A NO. 1713, 12TH CROSS
ASHOKAPURAM
MYSORE DISTRICT-570008
3. KARIBASAPPA
S/O MADEGOWDA
AGED ABOUT 56 YEARS
R/A NO.1071/1, IST MAIN
2ND CROSS, VIDYARANYAPURAM
MYSORE DISTRICT-570008
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4. RAMA
S/O THAMMEGOWDA
AGED ABOUT 51 YEARS
R/A NO.15, 7TH CROSS
SUBHASH NAGAR
MYSORE SOUTH
MYSORE-570007
5. RAMAPRASAD
S/O MADAIAH
AGED ABOUT 52 YEARS
R/A NO.97, E W S STREET
10TH CROSS
GANGOTHRI LAYOUT
MYSURU POST
MANASAGANGOTHRI
MYSORE-570006
6. YOGANANDA
S/O LATE PARAMESHWARAIAH
AGED ABOUT 52 YEARS
R/A NO.EWS-368
KUVEMPUNAGARA
MYSURU-570023
7. DODDABEERAIAH
S/O LATE BEERAIAH
AGED ABOUT 54 YEARS
R/A NO.135, ELIGE HUNDI
UTTANAHALLI
MYSURU-570019
...PETITIONERS
(BY SRI SHARATH S GOWDA, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
B R AMBEDKAR VEEDHI
BANGALORE-560001
2. THE STATE OF KARNATAKA
REP BY THE PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIKASA SOUDHA
B R AMBEDKAR VEEDHI
BENGALURU-560001
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3. DIRECTORATE OF MUNICIPAL ADMINISTRATION
REP BY ITS SECRETARY
DR B R AMBEDKAR ROAD
9TH AND 10TH FLOOR
VISHVESHWARAIAH TOWER
BENGALURU-560001
4. MYSURU CITY CORPORATION
NEW SAYYAJI RAO ROAD
MYSURU-570024
REP BY ITS COMMISSIONER
5. THE DEPUTY COMMISSIONER
MYSURU
KRISHNARAJA BOULVARD ROAD
MYSURU DISTRICT
MYSURU-570001
...RESPONDENTS
(BY SMT VANI H, AGA FOR R1 TO R3 AND R5
SMT GEETHADEVI M P, ADVOCATE FOR R4 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENT AUTHORITIES TO CONSIDER THE CASE
OF THE PETITIONERS FOR REGULARIZATION OF THEIR
SERVICE AS PER THE DIRECTIONS GIVEN BY THE FIVE
JUDGE CONSTITUTIONAL BENCH OF THE HON'BLE
SUPREME COURT IN THE CASE OF STATE OF KARNATAKA
AND ORS V/S UMADEVI(3) AND ORS AND ETC.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
7
ORDER
R. DEVDAS J., (ORAL):
The writ petitioners in these batch of writ petitions are seeking a direction to the respondent-
Authorities to regularize their services for having worked on a temporary basis continuously till date for nearly 30 years without the aid of any interim orders passed by any Court of law or Tribunal.
2. It is contended that the petitioners were taken on service with respect to available vacant posts. It is therefore contended that the petitioners were entitled for regularization in terms of the directions issued by the Hon'ble Apex Court in paragraph-53 in case of Secretary, State of Karnataka And Others Vs. Uma Devi (3) and Others reported in ILR 2006 KAR 2607.
3. Learned Counsel for the petitioners submits that some of the employees of the respondent- Corporation had approached this Court in W.P.No.22957-22978/1989 seeking for continuation of their service and regularization based on a 8 Government order dated 29.11.1989. Having regard to the decision of the Apex Court in the case of The Dharwad District P.W.D. Literate Daily Wages Employees' Association and Others Vs. State of Karnataka and Others, this Court disposed of W.P.Nos.22957-22978/1989 by order dated 16.03.1990 directing the respondents to examine the case of each one of the petitioners either for their continuation or what further relief should be given by way of regularisation or emoluments or any other work condition as directed in the aforesaid order of the Hon'ble Supreme Court. Consequent thereto, the respondent-Corporation issued an order dated 24.11.1995 based on the resolution of Mysore City Council to consider 217 daily wage workers for basic minimum salary and also decided to take action for regularization of their services. Learned Counsel points out from Annexure '1' which is annexed to the order dated 24.11.1995, to submit that the names of the petitioners find place in the said list of 217 daily wage workers.
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4. Learned Counsel further submits that the case of the petitioners was recommended by the Commissioner of the respondent-Corporation to the Deputy Commissioner, by way of a communication dated 21.12.2015, wherein the Commissioner had clearly held that 173 daily wage workers which includes 30 'C' group workers and 143 'D' group workers had completed service of more than ten years and they were appointed towards vacant posts. The learned Counsel submits that this recommendation was made by the Commissioner of the Corporation having regard to the directions given by a Division Bench of this Court while disposing of W.A.No.45/2013 and connected matters, by order dated 13.11.2013. The learned Counsel points out from the order of the Division Bench that the grounds for rejecting the claim of regularization in service, as briefly enumerated could not be sustained by the learned Government Advocate on the basis of any material on record. It was also held that even after clear directions of this Court in W.P.Nos.32357- 10 32366/1999, it was too late in the day for the appellant herein to contend that employees concerned had failed to prove that there were no vacant posts at the time when they were initially appointed on temporary basis. The learned Counsel further submits that in terms of the directions given by the Division Bench the case of the petitioners therein have been considered by the respondent- Corporation. It is therefore submitted by the learned Counsel for the petitioner that similar orders are required to be passed in these writ petitions also.
5. As regards the other prayer made by the petitioners seeking change of date of birth in the service register, the same cannot be accepted in view of the fact that there is no service register maintained with respect to the petitioners as on date. It is also an admitted fact that a Division Bench of this Court in a recent decision pertaining to the very same Corporation, in W.A.No.434/2020, by order dated 25.08.2020, has held that the documents relied upon by the petitioner i.e., SSLC marks card was always 11 in the possession of the petitioner and while the respondent-Corporation published the Official Memorandum dated 24.11.1995 showing the names of 217 daily wage employees who were appointed after 01.01.1986 stating that their services were regularized by bringing them on time scale, the petitioner did not file any objection before publishing the Official Memorandum. The Division Bench has clearly held that the position is well settled that if a particular date of birth is entered in the service register, the change sought cannot be entered at the fag end of the service after accepting the same to be correct during the entire service. Moreover in the present case, as stated earlier the question of changing the date of birth pertaining to the petitioners will not arise, since their services have not been regularized and there is no service register maintained with the Corporation pertaining to the petitioners.
6. Learned Counsel for the respondent- Corporation submits that an endorsement was issued 12 on 27.12.2017 bringing to the notice of the petitioners that their request for regularization had been rejected by the Deputy Commissioner. It is submitted that inspite of the communication dated 27.12.2017 made by the Deputy Commissioner to the Commissioner of Mysuru Mahanagara Palike being brought to the notice of the petitioners, they have not questioned the said communication. It is therefore submitted that these writ petitions should be dismissed on the ground of delay and laches.
7. The learned Counsel for the respondent- Corporation would also draw the attention of this Court to paragraph-9 of the communication dated 21.12.2015 at Annexure 'F' made by the Commissioner of the Mysuru Mahanagara Palike to the Deputy Commissioner where with respect to the four requirements as enumerated in the decision of Uma Devi, it was brought to the notice of the Deputy Commissioner that since there was a direction by the State Government not to fill up any posts, none of the vacant posts were filled up. Therefore, the petitioners 13 cannot claim that they were appointed towards vacant posts.
8. Learned AGA submits that the Deputy Commissioner may be given one more opportunity to reconsider the case of the petitioners in the light of the observations and directions given by the Division Bench in the case referred hereinabove.
9. Heard the learned Counsels and perused the petition papers.
10. From the material available on record, it is clear that the Commissioner, Mysuru Mahanagara Palike, in his communication dated 21.12.2015 at Annexure 'F' had clearly recommended the case of the petitioners who formed part of 173 workers as enumerated therein. It was brought to the notice of the Deputy Commissioner that after 01.01.1986, 217 workers were employed as daily wage workers. In terms of the Government Order dated 23.11.1995 the time scale was granted to the petitioners as their names are found in the list annexed to the said Government Order dated 23.11.1995. It is also clear 14 that the petitioners fulfilled all the four conditions as enumerated in the decision of Uma Devi. As regards the contention of the respondents that the petitioners do not fulfill one of the criterion that their appointments were not against vacant sanctioned posts, is also proved incorrect, in view of the information provided by the Commissioner in the communication dated 21.12.2015. As rightly submitted by the learned Counsel for the respondent- Corporation, in view of the directions issued by the State Government, the Corporation was not in a position to make recruitment to the various posts of Group 'C' and 'D'. It is also admitted in the said communication that employees including the petitioners who were working in 'D' group were working as against vacant sanctioned posts. It is also pertinent to notice that the Division Bench has clearly held that information as to whether the petitioners were employed towards vacant sanctioned posts is a factual material available with the respondent-Corporation and not with the petitioners. 15 The Commissioner having clearly communicated to the Deputy Commissioner that none of the sanctioned posts could be filled up in the category of Group 'D' and 'C', in view of the directions issued by the State Government, it can safely be concluded that all the posts sanctioned were lying vacant and the petitioners along with the other employees were all appointed against vacant sanctioned posts. This is the reason why the Commissioner in the communication dated 21.12.2015 recommended the case of the petitioners to be regularized towards the vacant posts. The Commissioner has also recommended to the Deputy Commissioner that in terms of the decision in Uma Devi and the Government Order dated 25.05.2006, the services of the 143 Group 'D' employees could be regularized from the date of completion of ten years of service.
11. The submission of the learned Counsel for the respondent-Corporation that the writ petitions are required to be dismissed on the ground of delay 16 and laches, cannot be accepted for the fact that the communication dated 27.12.2017 which was filed along with the statement of objections of the respondent-Corporation as Annexure 'R1', is a communication made by the Deputy Commissioner to the Commissioner of the respondent-Corporation. No material has been placed on record to show that the said communication dated 27.12.2017 was brought to the notice of the petitioners.
12. During the course of the proceedings, it is brought to the notice of this Court that some of the petitioners have attained the age of superannuation. The learned Counsel for the petitioners has therefore prayed that a direction may be given to the respondent-Corporation to consider the case of such of the petitioners who have attained the age of superannuation also for deemed regularization so that they will have the benefit that could be available to the other employees whose services will be regularized by virtue of the directions issued by this Court. It is submitted that such a benefit is required 17 to be given to such of the petitioners who have attained the age of superannuation since they have rendered service to the respondent-Corporation for more than thirty years. It is also prayed that the benefit given to the petitioner in W.P.No.3283/2020 and the connected matters which were disposed of on 24.07.2020 where directions were issued to the respondents to pay to the petitioners their salary for the services rendered by them pursuant to interim orders granted by this Court, notwithstanding their age of superannuation, may also be considered while passing deemed order of regularization and the services rendered by such of the petitioners after the attainment of age of superannuation till the order dated 24.07.2020 may be counted.
13. In that view of the matter, this Court is of the considered opinion that the writ petitions are required to be partly allowed. Consequently this Court proceeds to pass the following :
18
ORDER
1. A writ of mandamus issues to respondent No.5-Deputy Commissioner, Mysuru, to consider the case of the petitioners for regularization of their services in terms of the directions given by the Apex Court in the case of Uma Devi and the Government Order dated 25.05.2006 from the date on which the petitioners completed ten years of service.
2. The impugned communication dated 27.12.2017 is hereby quashed and set aside.
3. In case of the petitioners who have attained the age of superannuation subsequent to filing of these writ petitions, their cases also shall be considered for deemed regularisation and after the order of deemed regularization is passed with respect to such of the petitioners, all the retiral benefits as is available for a regular employee shall be given.
4. In case of such of the petitioners who continued to work in terms of the interim 19 orders passed by this Court, their salaries shall be paid for the services rendered by them pursuant to the interim orders.
It is ordered accordingly.
Sd/-
JUDGE JT/-